This article examines the problems with
a social norm that assumes women should shoulder a disproportionate
amount of unpaid family work. It evaluates the most recent empirical
data which suggests that women continue to do substantially more unpaid
work than men, and men continue to do substantially more paid work than
women. It then briefly reviews two standard explanations for where this
gendered division of work may come from, biological inclination and/or
systems of male dominance. It suggests that neither of these
traditional explanations have given adequate consideration to the
normative question begged by the extant division of labor. Is there
something wrong with the fact that women seem to choose to do more
unpaid work than men do? This article answers that question both for
women who forego paid work entirely and for (the much larger class of)
women who combine paid and unpaid work but still perform the lion's
share of their household's home work.

The article suggests that the
problem with the unpaid work norm is not so much that women do not get
paid for as much of their work as men do, because many women do end up
getting paid – by their husbands – for the work they do in the home.
Instead, the problem with the unpaid work norm is the messages that it
sends with regard to the need for and ability to combine paid and
unpaid work. The analysis presented suggests that women opting out of
paid work entirely is problematic because it puts insufficient pressure
on the workplace to afford flexibility for the many workers who need
it. More important, the article suggests that the extant division of
unpaid labor, even in households in which both spouses perform paid
work, is putting many of the equality gains that women have made in
jeopardy. If so many women continue to subordinate their own paid work
so that their spouses do not have to, the workplace is likely to take
notice and start assuming precisely that. Employers may well start
resisting equality legislation that prevents firms from making accurate
predications about women's likelihood of working less hard (at paid
work) than do men.

A very provocative article and one that challenges the very foundations of the social norms surrounding our working culture. I very much look forward to reading this article in more depth to see what its implications are for workplace flexibility debates currently percolating through this country.

The
Federal Arbitration Act of 1925 was signed into law by President Calvin
Coolidge in an entirely different era. Indeed, the Act's purpose, as
the Supreme Court noted just a few years ago, “was to reverse the
longstanding judicial hostility to arbitration agreements that had
existed at English common law and had been adopted by American courts,
and to place arbitration agreements upon the same footing as other
contracts.”
This statute, focused as it was upon commercial agreements and
arrangements and designed to both confront and diminish judicial
hostility toward arbitration, has experienced substantial
transformation. Most significantly, it has come to have a major impact
upon the employment relationship that may rival the impact of both the
National Labor Relations Act of 1935 and the civil rights statutes of
the 1960s. One of the paradoxes here is that the Federal Arbitration
Act was shaped at a time of overt, explicit, and now illegal
discrimination on the basis of race, religion, sex, union activity, and
other forms of conduct. Yet now, the Act has become a major employment
statute with an impact not only upon the individual contract of
employment in and out of the discrimination context, as is obvious, but
also potentially, the collective bargaining agreement itself.

Definitely an important read from one of the great labor arbitrators in this country.

We almost never talk out loud about physiognomy, the bogus science of
judging character on the basis of facial features. But we all do it. We
like or dislike people, hire and sometimes fire them, steer them onto
the fast track or nudge them into the oubliette based in part on facial
prejudices of which we are scarcely even aware . . . .

In one study tracking more than 500 cases of intentional wrongdoing in
Boston small-claims court, judgments went against mature-faced
defendants 92 percent of the time, but against baby-faced defendants
only 45 percent of the time. The perception, says Brandeis University
psychologist Leslie Zebrowitz, is that “baby-faced people are too
honest and naïve to have a high probability of committing a
premeditated offense.” . . . .

Businesses still often act as if the stereotypical markings of
executive style are a prerequisite for promotion. At a veterinary
medicine company not long ago, a vice president got hired in part
because he had, no kidding, “managerial eyebrows.”

Apart from the tendency to lead us into utterly superficial snap
judgments, there is a darker side to facial stereotyping. Ugly people
get overlooked. (They “develop complexes due to the humiliation and
abuse they endure over the years,” one executive told me, to justify
not hiring them.) Meanwhile handsome people often enjoy the unfair
advantage of the “attractiveness halo.”

Facial or appearance discrimination is no small problem when it comes to employment discrimination law as the Jespersen make-up case recently illustrated and also the Abercrombie & Fitch case in which the store "paid $40 million a few years ago to settle a
lawsuit alleging that it staffed its stores with hip, attractive young
people — who happened disproportionately to be white."

The question is whether such discrimination should be considered acceptable as long as it does not specifically cause intentional or nonintentional discrimination against a protected group. Or at the very least, should such forms of discrimination be considered acceptable bona fide occupational qualifications (bfoqs) for certain professions?

Sam Estreicher (NYU) has put together a nifty chart to measure the judicial performance of the U.S. Supreme Court in labor and employment cases during the 2005-2006 term. Sam writes in the Spring 2007 newsletter for the ABA Section on Labor & Employment Law:

Establishing political criteria for judging the Supreme Court’s work is a hopelessly unsatisfying endeavor as long as we reserve the right to have different political views and legal philosophies and the Court continues to have a completely discretionary docket. I propose, instead, a more limited criterion that may generate a measure of agreement: In the cases that it accepts for plenary review, does the Court decide what it has to and no more than it has to? In other words, does the Court reach out for issues that the case does not properly present or deliberately avoid deciding issues that are both properly presented by the case and important (as evidenced by the Court’s grant of certiorari)?

Sam's chart of labor and employment cases and an explanation of his scoring system can be found here. Interestingly, this "conservative" Supreme Court didn't do too well based on Sam's criteria: "The maximum score [the Supreme Court] could have received was 9. It instead received a grade of 4."

If the relationship is guided primarily by business considerations,
such that it can be characterized as “typically industrial,” the individuals
will be found to be statutory employees; alternatively, if the relationship is “primarily
rehabilitative” in nature, the individuals will not be found to be employees. In conducting this analysis, the Board
examines numerous factors including, inter alia, the existence of
employer-provided counseling, training, or rehabilitation services; the existence
of any production standards; the existence and nature of disciplinary
procedures; the applicable terms and conditions of employment (particularly in
comparison to those of nondisabled individuals employed at the same facility);
and the average tenure of employment, including the existence/absence of a
job-placement program.

In applying this test, the Board found that "in contrast to the evidence in Brevard that 80 to 85 percent of that
employer’s disabled workers were either mentally impaired or had severely
disabling mental illness, . . . examples of specific disabilities of the Employer’s workers are limited to
hearing impairment, diabetes, high blood pressure, and cholesterol. Included among those the Employer classifies
as disabled are the highest-ranking personnel working at [the site], the site
manager and supervisor." The Board also rejected the employer's attempt to use the ADA's definition of disability, concluding that the tests are independent of each other. Finally, in applying the other factors, the Board found that:

[T]he
Employer offers limited counseling and rehabilitative services (perhaps because
the workers the Employer classifies as disabled have comparatively little need
for such services); it does not make any significant distinctions between its
disabled and nondisabled workers with regard to terms and conditions of
employment and production standards; and it has not shown that it seeks to and
does transition its disabled workers to private competitive employment. Although the factor of disciplinary standards
cuts the other way, it is insufficient by itself to dictate a different
outcome.

One important element of this case is the clarification of which party has the burden of proof under the "primary rehabilitative" standard. Brevard had left that question open, and the Board in Goodwill concluded that the party seeking to classify the employer's relationship with disabled workers as primarily rehabilitative, rather than as employee/employer, must prove that assertion. As the Board noted, this analysis is fully consistent with the well-established precedent (see, for example, Kentucky River) that the party seeking to exclude a worker from classification as a statutory employee bears the burden of proof.

This is potentially good news. Brevard created some worries that the Board was going to do to disabled workers what it has done to graduate students and nurses. This case hopefully indicates that the Board will look seriously at the facts of each case, particularly given that none of the members on the panel--Liebman, Schaumber, and Kirsanow--dissented (although Liebman reiterated her dissent in Brevard and her disagreement with the primarily rehabilitative test). We'll see what happens in later cases.

Art Leonard (New York Law School) passes along this interesting decision in Fairchild v. Riva Jewelry Manuf., Inc., from a New York state trial court decision. At issue, does the
defendant have to answer certain questions about his religious beliefs
in a sexual orientation discrimination case.

The facts concern a rampantly, homophobic employer who cited the Bible frequently to his employees for the view that homosexuality is a sin against God. When the employer found out that the plaintiff was gay, he told the employee that he was doomed to eternal damnation and the employer was fired the next day without any reason being given. Plaintiff brought a sexual orientation discrimination claim under New York state law and New York City local law.

During discovery, the employer refused to answer interrogatories on the basis that revealing his views on homosexuality interfered with his free exercise of religion. The court ordered the defendant answer the questions stating:

It is the duty of every Court to guard jealously the great right and privilege of free exercise and enjoyment of religious profession and worship without discrimination or preference, with all the power the Court possesses, but no person should be permitted to use that right as a cloak for acts of discrimination or as a justification of practices inconsistent with the protections against invidious discrimination proscribed in New York State law.

Needless embellishment of the rights to religious liberty to one side, the court was right on the mark in coming to this decision.

Thanks to CCH WorkWeek for pointing out the following troubling development:

The full Senate appropriations committee approved a fiscal year 2008 spending
bill that includes $378 million for the EEOC, $50 million above the President's
budget request. The committee also narrowly adopted an amendment added by Sen.
Lamar Alexander (R-TN) that would prevent the agency from using those funds to
sue companies that require employees to speak English. "The Senate has declared
English our national language," said Alexander, "and requiring it in the
workplace is not discrimination—it is common sense."

I am, of course, happy to see more funding for the habitually under-funded EEOC, but this English-only amendment does not provide the needed national origin discrimination protection that the law was meant to provide in certain contexts.

And when did the Senate declare English to be our national language? And why should that matter if a worker is fired because his or her employer does not like the way the employee speaks English?

The recent edition of the Deloitte Washington Bulletin has the following information on new guidance on partial terminations of employee benefit plans:

The IRS on June 26, 2007 issued Revenue Ruling 2007-43 to provide guidance on the rules for determining when an employer-initiated reduction in the number of pension plan participants will result in a partial termination of the plan. Those who have followed the partial termination saga over the years might argue with some (or all) of the positions the IRS has staked out, but the revenue ruling represents a much-needed attempt to cut through the complex web of prior IRS guidance and case law and give some meaningful guidelines that plan sponsors and participants can follow when trying to determine if a partial termination has occurred . . . .

Whether a partial termination of a plan occurs is still a “facts and circumstances” test, with one factor being “the extent to which participating employees have had a severance from employment.”

If the turnover rate for the “applicable period” is 20 percent or higher, there is a presumption of a partial termination. The applicable period depends on the circumstances. It could be the plan year, but if the plan year is less than 12 months the applicable period is the plan year plus the preceding plan year. The applicable period can be even longer if there are “a series of related severances from employment.”

Even if the turnover rate for the applicable period is 20 percent or higher, the presumption of a partial termination can be rebutted by other facts and circumstances. For example, a showing that the turnover rate for an applicable period is routine for the employer favors a finding of no partial termination.

This is welcome guidance in an area that is all-too-confusing for even the most seasoned ERISA practitioner.

Judge Nancy Gertner, of the District Court of Massachusetts, has sent us a request for amicus participation in a case before her. The case is Massachusetts Nurse Assoc. v. Essent Healthcare of Massachusetts, Inc.

Here is a brief summary of the facts:

In this case, a Massachusetts-based employer has extended health insurance benefits, under an ERISA-covered employee welfare plan, to “legal spouses” of employees, but has expressly limited that coverage to legal spouses “of the opposite sex.” This policy was the subject of arbitration between the employer and a labor organization representing employees at the employer’s workplace. The arbitrator determined that the policy does not violate the terms of a collective bargaining agreement in place between the employer and the labor organization. The case comes to the Court on appeal from the arbitrator’s decision.

The courts poses two question to potential amici:

1. Is there is a “clear public policy” against sexual preference discrimination and/or in favor of same-sex marriage in Massachusetts, that meets the standards of Eastern Associated, 531 U.S. at 62, and if so, what are its sources in positive law, i.e. regulations, statutes, constitution, jurisprudence?

2. Is that state public policy – if it exists – preempted by the breadth of ERISA preemption? 29 U.S.C. § 1144(a). Is there any difference in the reach of theERISA preemption clause when it is applied to an area - marriage - that is traditionally a core area of state authority, as compared to when it is applied to preempt state laws concerning other forms of discrimination, as in Shaw v. Delta Air Lines, Inc., 463 U.S. 85 (1983),Air Transp. Ass'n of Am. v. City & County of San Francisco, 992 F. Supp. 1149, 1172 (N.D. Cal. 1998), or Catholic Charities of Me., Inc. v. City of Portland, 304 F. Supp. 2d 77, 90-93, 96 (D. Me. 2004). Can ERISA preempt a provision of a state constitution?

Amicus briefs are due August 1, 2007. The full Request for Amicus Briefing is here.

Over at SCOTUSblog, Eric Dreiband, a labor and employment partner with Akin Gump in Washington D.C., writes about the potential impact of the recent Supreme Court school affirmative action decisions on employer voluntary affirmative action plans.

Here's some of what Eric has to say:

Although Thursday's decision in Parents Involved in Community Schools v. Seattle School District rejected
race-conscious school assignment programs, its rationale about the use
of race will extend beyond schools to employment and other areas. Parents Involved will also add fuel to the anti-diversity fire that has been raging in the federal courts in the four years since Grutter v. Bollinger
decided that race-conscious diversity programs in higher education can
be lawful. The case is also likely to have a significant impact beyond
the educational arena: the federal courts will strike down employment
diversity programs that seek nonremedial "racial balancing," and
diversity plans that explicitly consider race in employment are
vulnerable to Title VII challenges.

Particularly telling to me is how circuit courts have been responding to employer diversity plans since Grutter in 2003:

After Thursday's decision, it seems clear that in the absence of a
"manifest imbalance," an employer will expose itself to Title VII
liability if it uses a diversity plan that seeks a "racially balanced"
workforce by explicit consideration of race or other protected traits. Parents Involved will add to the courts' post-Grutter skepticism about workplace diversity programs, and may increase it.

I don't agree that Grutter and Parents Involved should necessarily speak to Title VII, as the Court has made clear in Johnson and Weber that different analyses should apply to Title VII voluntary cases than apply to equal protection challenges under the 14th Amendment. Nevertheless, I do agree that the Weber factors already make it unlikely that employer diversity plans will survive outside the need to "eliminate manifest racial imbalances in traditionally segregated job categories."

But this is so because of Title VII precedent, not because of equal protection holdings made in Grutter and Parents Involved. But like Eric, I wonder what impact Justice Kennedy's concurrence in Parents Involved will have on employer's ability to voluntary undertake workplace AA plans in the future. If an employer diversity plan is challenged in front of this Court, one would expect it to face a very tough legal challenge.

Steven Hecker of the University of Washington had a bone to pick with an assertion made by Oregon OSHA's administrator in our story Thursday on the agency's low fine amounts.

In the story, we reported that the agency's administrator, Michael
Wood, cited the state's declining number of fatalities and workers
compensation premiums as evidence that the system works. ... the
state's injury and illness rate has dropped from 10.1 per 100 full-time
workers in 1990 to 5.4 per 100 in 2005.

Hecker alerted At Work to a four-month-old study, a summary of which you can read at The Pump Handle blog,
that found that much of the decline in injury and illness rates can be
attributed to changes in how accidents are reported to the government.
The changes were made in 1995 and 2001.

One wonders whether recently trumpeted declining workplace injury rates by federal OSHA can be attributed to government reporting reforms? Anyone out there know?

From the Labor and Employment Relations Association (LERA) listserv, a call for papers:

In recent years big strides have been made to collect both quantitative and qualitative data on employees and their workplaces in such a way as to permit comparative analyses across countries . . . .

BJIR [British Journal of Industrial Relations] is calling for papers for a special edition of the Journal devoted to comparative studies of the workplace. The objective is to see what we can learn about work and the workplace that we might not have known by confining analyses to single countries. Underlying this endeavour is a concern to identify empirical regularities across countries and to consider the role of institutions and other country-specific features in understanding the nature of workplace employment relations.

A selection of papers will be chosen for presentation at a special conference to be held at the Centre for Economic Performance (CEP) of the London School of Economics, on 14 March 2008. The papers presented at the conference will be included, subject to BJIR’s refereeing process, in a special issue of the journal which will be published in 2008 or 2009.

Those interested are invited to submit papers to Sylvia Roesch (s.roesch@lse.ac.uk) by 26 October 2007. If you wish to discuss a proposed paper then please contact Alex Bryson (a.bryson@psi.org.uk ).

The
Family Leave Insurance Fund Act of 2007 would create a fund to finance
benefits via employer and employee premiums, according to a statement
on Senator Chris Dodd's (D-Connecticut) Web site. Dodd and Senator Ted
Stevens (R-Alaska) introduced the bill in the Senate on June 21.

Under the program, employers
will pay leave benefits to employees through their regular payroll,and
will be reimbursed from the Family Leave Insurance Fund, the statement
said. Employees must have paid premiums for 12 months and have worked
for their employer for at least one year to be eligible for the benefit
- which provides eight weeks of paid leave within a 12-month period.

The program would be
mandatory for all businesses with more than 50 employees, but companies
with equivalent or better benefits may choose to self-insure.
Businesses with fewer than 50 employees and self-employed workers may
opt in to the program, with a 50% discount on premium payments.

Employees and employers each
would pay a premium equivalent to 0.2% of each employee's earnings.
Benefits paid by the program are tiered based on employee salaries,
ranging from 100% of weekly earnings for employees earning up to
$20,000 to 40% of weekly earnings for employees with salaries between
$60,001 and $97,000.

Sounds like a plan that even might be bought into by the Chamber of Commerce. I guess we'll see.

On remand from a reversal of a denial of a
motion for equitable relief after a jury verdict in favor of the employee in a
Title VII race discrimination case, the trial court awarded equitable relief of
back pay to the date of the order, a 14% increase for adverse tax consequences,
and other relief, but denied front pay. The DC Circuit affirmed in part and
reversed in part.

The court rejected the employer's argument
that Title VII set a single standard of liability for "mixed motive" and "single
motive" cases. The court could not infer from the 1991 addition of section
2000e-2(m) the implicit repeal of section 2000e-2(a) as a standard for
establishing liability in preference to the more straightforward inference that
section 2000e-2(m) added an additional way of establishing liability. The court
noted that no circuits had interpreted the 1991 amendment as the employer
argued.

More specifically, Chief Judge Ginsburg, writing for the panel (with a thoughtful concurrence by Judge Henderson on the proper characterization of mixed motive cases), found that:

On its face Title VII provides alternative ways of establishing liability for employment practices based upon the impermissible use of race or other proscribed criteria — one in § 2000e-2(a), which has been in the law since 1964, and another in § 2000e-2(m), which the Congress added in 1991, see Civil Rights Act of 1991, Pub. L. No. 102-166, § 107(a), 105 Stat. 1071, 1075, in response to the Supreme Court’s decision in Price Waterhouse . . . .

If the Government is correct that § 2000e-2(m) now provides the “single standard” for establishing an unlawful employment practice, then it must be because the 1991 Amendments somehow repealed the standard in effect theretofore. But nothing on the face of the 1991 addition suggests a case may no longer be brought under § 2000e-2(a) — as they have been since 1964 — and repeals by implication are very much disfavored, see TVA v. Hill, 437 U.S. 153, 189-90 (1978) . . . .

Therefore, we cannot infer from the addition of § 2000e-2(m) the implicit repeal of § 2000e-2(a) as a standard for establishing liability in preference to the more straightforward inference that § 2000e-2(m) adds an additional way of establishing liability. See Desert Palace, 539 U.S. at 94 (stating that § 2000e-2(m) “establishes an alternative for proving that an ‘unlawful employment practice’ has occurred”) (dictum).

Under the current state of the law, I think the D.C. Circuit got the distinction between mixed motive and pretext cases right. The more important question, however, is whether this should be the state of the law or whether we should just have one standard for finding liability in individual disparate treatment cases under employment discrimination law. Personally, I'm all for simplifying this area of the law and adopting a motivating factor/CRA 1991 analysis for all such cases.

The House Education and Labor Committee has overwhelmingly passed a bill which would extend collective bargaining rights to firefighters, police officers, and first responders. Here's the press release:

By an overwhelmingly bipartisan vote of 42-1, the House Education and
Labor Committee today approved legislation to guarantee the rights of
firefighters, police officers, and emergency medical service workers in
all 50 states to collectively bargain for better wages, benefits and
working conditions . . . .

Approximately twenty states do not fully protect the collective
bargaining rights of public safety employees, and two states – Virginia
and North Carolina – prohibit public safety employees from collectively
bargaining.

The bill would provide basic labor protections for state and local public safety workers.

The bipartisan nature of the bill leads to hope that the bill will actually pass the House and be seriously considered by the Senate. But like Mitch Rubinstein at Adjunct Prof Blog, I am not holding my breath that there won't be a Republican senate filibuster or a veto of this bill by one of the most anti-union Presidents in the history of this country.

Update: Thanks to Steve Befort (Minnesota), who is currently teaching in China, for sending along this summary that he prepared for his class on the principal changes embodied in
China’s new Contract Labor Law.

China’s legislature passed a sweeping new labor law today that
strengthens protections for workers across its booming economy,
rejecting pleas from foreign investors who argued that the measure
would reduce China’s appeal as a low-wage, business-friendly industrial
base.

The new labor contract law, enacted by the Standing
Committee of the National People’s Congress, requires employers to
provide written contracts to their workers, restricts the use of
temporary laborers and makes it harder to lay off employees.

Although this is a great first step in a country that has been called to answer for numerous human rights violations, there are still some questions that have to be answered about how this law will actually impact the lives of Chinese workers:

But it may fall short of improving working conditions for the tens of
millions of low-wage workers who need the most help unless it is
enforced more rigorously than existing laws, which already offer
protections that on paper are similar to those in developed economies.

In other words, enactment of such laws is great, but enforcement is the key (are you listening OSHA, etc.?).

With the mandate that everyone in Massachusetts
have health insurance taking effect on Sunday, more than 130,000 people
— about a third of those who were uninsured a year ago — now have
coverage, officials say.

But most of those who have signed up are poor enough to qualify for free or state-subsidized insurance.

People
who must pay the full cost themselves, who are crucial to the success
of the nation’s most ambitious effort to achieve near-universal
coverage, may now be a majority of the state’s uninsured and not all
are rushing to get coverage. Many of them are healthy young people in
their 20’s and 30’s, state officials say.

“A lot of the
population we’re trying to reach right now are young folks who don’t
have insurance for a lot of reasons, not the least of which is they
don’t think they’re ever going to be sick,” Gov. Deval Patrick said.

Other hurdles include the fact that some businesses, especially small
ones, are struggling with the requirement that employers with more than
10 workers offer insurance.

These, of course, are not insurmountable hurdles, but it gives you sense of some of the non-ERISA challenges that states (actually a commonwealth) face when implementing these ambitious universal coverage plans.

But expect things to pick up after December 1st, when people start facing penalties for not having insurance:

Massachusetts is deliberately taking things slowly. In 2008, the
penalty for those not insured will be a loss of state tax exemption,
worth about $219; later the penalty will be up to half of a monthly
insurance premium for each month a person is uninsured. Also, while any
insurance is acceptable at first, by January 2009, everyone must have
drug coverage.

Officials estimate that 60,000 people will be
exempt from getting insurance altogether because they will be
ineligible for subsidies but unable to afford other options.

Understanding Disability Law discusses
important statutory and constitutional issues relating to disability
discrimination. It is designed to help students in Disability Law
courses synthesize and apply the materials they are learning. It is
also designed to function as a compact treatise for practicing lawyers
and others looking for an analysis of the Fourteenth Amendment, the
Americans with Disabilities Act, section 504 of the Rehabilitation Act,
the Individuals with Disabilities Education Act, the Fair Housing Act
Amendments, and other laws, as they relate to controversial issues of
disability rights. The book discusses the leading cases on each of the
major topics of disability law, and suggests ways of thinking about
unresolved questions and debates over legal policy.

Plaintiff [who] never joined the St. Marys Education Association/Ohio Education Association/National Education Association (“Union”). Namely, Plaintiff objects to supporting the Union because the Union supports abortion rights. Thus, Plaintiff believes that if she supported the Union, she too would be supporting abortion. Consequently, Plaintiff alleges that if she were a member in the Union, she would violate her obligations to the Church, commit sin against God, and potentially lose her eternal life.

At issue was whether "Plaintiff was required to either join the Union or pay an agency fee to the Union as a condition of employment," as required by a new collective bargaining agreement entered into in 2005. Instead, the Plaintiff sought a religious exemption from having to pay fees to the union. Ohio law allows individuals an exemption if the "public employee . . . is a member of and adheres to established and traditional tenets or teachings of a bona fide religion or religious body which has historically held conscientious objections to joining or financially supporting an employee organization. . . .” In accordance with law, Plaintiff desired to redirect her union contribution to a nonreligious charitable fund.

The Employment Relations Board found that the Plaintiff was not eligible for the exemption because she was not a member of a religion that historically has held conscientious objections to union support. Plaintiff brought a Section 1983 action claiming that the Ohio religious exemption provision violated the establishment and free exercise clauses of the First Amendment by impermissibly discriminating against her religious beliefs.

Even though the Union subsequently agreed to accommodate the Plaintiff's religious beliefs, the court turned aside standing and mootness challenges, and found that the religious exemption provision violated the establishment clause because it discriminated against the Plaintiff based on her religion. More specifically, the Court found:

Section 4117.09(C) facially differentiates between religions. It distinguishes between two employees who have the same religious beliefs and attend the same church, when one has actually become a formal member of the church. The statute further differentiates between two employees who have the same religious beliefs, are members of churches with formal doctrines against supporting labor unions, but one of the churches has recently embraced a doctrine, while the other church has historically embraced it. It then creates a denominational preference by providing special treatment to members of the religious organizations described in the statute. Specifically, the statute requires employers to provide a substituted charity accommodation to members of religions having the beliefs described in the statute. On the other hand, non qualifying employees–who may have the same religious beliefs– must file an action under § 701(j) of Title VII. 42 U.S.C. § 2000e(j). Therefore, § 4117.09(C) has the effect of increasing the advantages of membership in religions such as Seventh-day Adventist and Amish Mennonites that have previously received exemptions.

I assume this ruling will be appealed to the Sixth Circuit because its holding seems to suggest the public unions must exempt all religious adherents from paying union dues or none at all. Of course, the latter approach would almost certainly run afoul of the religious clauses of the First Amendment.

Combined with the recent Supreme Court Davenport decision which allows States to adopt an opt-in mechanism for nonmember, public union employees, this ruling strikes another significant blow against public unions' abilities to collect fees from public employees who benefit from the union's services.

Yesterday came news of a horrific tragedy involving a worker at an amusement park near New York City which highlights the limits of workplace safety laws (via CNN.com):

An amusement park worker was thrown off a gyrating ride and killed,
and park officials acknowledged Saturday that a safety precaution put
in place after a fatal accident on the ride in 2004 wasn't followed.

Gabriela Garin, 21, of White Plains, New York, was killed Friday night
after fastening some late-arriving riders into their seats on the Mind
Scrambler, the same ride where a 7-year-old girl was killed three years
ago at the landmark Playland Amusement Park in Rye. The ride was
immediately shut down for the rest of the summer.

It was the fourth fatality at the park in just over three years.

Garin was operating the ride, a spider-arm-style attraction that
spins riders around in two-seat cars, park spokesman Peter Tartaglia
said. She had changed shifts with a new ride operator but stayed to
take on a few new passengers before leaving for the night, he said.

The woman told the operator she would fasten the last riders into the
car, and the new operator, whose name wasn't immediately available,
stepped into a booth and started the ride, Tartaglia said.

He
looked up, noticed Garin still on the ride and shut it down 15 to 20
seconds after it began, Tartaglia said. But Garin, who started working
at the park when she was 14, already had been thrown from it, he said.

This appears to be an instance of where even the best safety rules and precautions cannot in the end overcome human error.